Analysis: Court evades central question in anti-Christian lawsuit

Aug. 22, 2011

Updated Aug. 21, 2013 1:17 p.m.

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High school history teacher James Corbett, pictured in this September 2010 photo speaking to members of the high-IQ society Mensa in Irvine, has been exonerated in a lawsuit that accused him of violating a student's First Amendment rights. But the central issue of whether he, in fact, violated his student's rights is likely never to be resolved by the courts, experts say. FILE PHOTO: KEN STEINHARDT, THE ORANGE COUNTY REGISTER

High school history teacher James Corbett, pictured in this September 2010 photo speaking to members of the high-IQ society Mensa in Irvine, has been exonerated in a lawsuit that accused him of violating a student's First Amendment rights. But the central issue of whether he, in fact, violated his student's rights is likely never to be resolved by the courts, experts say. FILE PHOTO: KEN STEINHARDT, THE ORANGE COUNTY REGISTER

Friday's federal appellate court ruling exonerating high school history teacher James Corbett has provided little clarification on whether he violated a former student's First Amendment rights with his allegedly anti-Christian classroom commentary, legal experts say, even as the ruling spells an almost certain end to the nearly 4-year-old court case.

When the 9th U.S. Circuit Court of Appeals in Pasadena tossed out former Capistrano Valley High School student Chad Farnan's case on Friday, the three-member panel of judges did so without ruling whether Corbett's tape-recorded statements were impermissible under the First Amendment's establishment clause. The clause has been interpreted by U.S. courts to prohibit government workers from displaying religious hostility.

"It's a shame that the panel didn't use the case to say whether the teacher behaved unconstitutionally," said Michael McConnell, director of Stanford University's Constitutional Law Center and a former appellate court judge. "All they decided was that there aren't past cases similar enough to put this teacher on notice. I think they should have addressed the merits, for the benefit of teachers and students in the future."

In 2009, U.S. District Court Judge James Selna in Santa Ana ruled that Corbett violated the establishment clause when he referred to Creationism as "religious, superstitious nonsense" during a fall 2007 classroom lecture. But Selna dismissed more than 20 other statements cited in a lawsuit brought by Farnan.

Selna also granted Corbett qualified immunity, a federal protection that shields government workers from financial liability.

Farnan appealed, seeking to toss out the immunity and get the appeals court to reconsider all 22 comments; Corbett's team, which grew to include constitutional scholar and UC Irvine law school dean Erwin Chemerinsky, appealed as well.

On Friday, the three-judge appellate panel overturned Selna's ruling, emphasizing there was "no prior case" alerting Corbett he had been violating the law.

"This is an example of a systemic problem in constitutional litigation," said Douglas Laycock, a University of Virginia law professor who is an expert on the law of religious liberty. "They can't hold the teacher liable because the law was not clearly settled. Because they can't hold him liable, the law will never become clear on what teachers can say in class.

"The next teacher who does this will say, 'The law is not clearly established and you cannot sue me for damages, because the 9th Circuit opinion says nothing about what the law says,'" Laycock said.

Corbett remains in his teaching position at Capistrano Valley High in Mission Viejo; Farnan, who brought the lawsuit as a sophomore in December 2007, is now a freshman at Pepperdine University in Malibu.

Legal experts also noted the case would almost certainly die at this juncture.

Farnan's attorney, Robert Tyler of the Murrietta-based Advocates for Faith & Freedom legal group, told the Register last week that he planned to appeal the case to the same appellate court and, if necessary, to the U.S. Supreme Court.

While Tyler could appeal to the 9th Circuit to request an en banc hearing, in which a larger panel of 9th Circuit judges would reconsider the case, the court likely would have no reason to grant such a hearing, as there was no legal procedural error by the original three-judge panel, McConnell said.

"Whether the court should have addressed the merits of the case is not an en banc-worthy question," said McConnell, who has presented the Corbett case in his Stanford law classes. "One might criticize their discretion, but it's not a legal error. It was left to their judgment, and they exercised their judgment."

The case, if appealed to the Supreme Court, also likely would never be accepted by the high court, experts say, because the constitutional issues raised in the Corbett case do not appear to be a systemic problem among teachers nationwide.

"It's the first case of its kind," Laycock said. "It doesn't seem to be coming up often. This is hard, a difficult legal question that no one has had much opportunity to think about before, and they're not going to be eager to get into it."

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